"It is a truism that almost any sect, cult, or religion will legislate
its creed into law if it acquires the political power to do so, and
will follow it by suppressing opposition, subverting all education to
seize early the minds of the young, and by killing, locking up, or
driving underground all heretics."
--Robert A. Heinlein, postscript to Revolt in 2100

I must begin with a few words about the perspective from which the
following analyses are relevant to the topic of coercive persuasion in
the context of the new religions. I have not done detailed research
in connection with the new religions or the concept, specifically, of
"coercive persuasion," though I read generally in the field with the
intent of getting more involved in the study of these topics.
However, I do feel I can bring something positive and specific to
thought about the topic. This is because for a number of years my
research has covered the area of mental disability, especially in the
context of law, and most especially in connection with the criminal
law and criminal responsibility. Specifically, I have worked on such
topics as criminal insanity, diminished capacity, intoxication,
addictions, and on other related notions that one runs across in the
law, such as automation, unconsciousness, and involuntariness.
Obviously these questions of mental disability and legal
responsibility are also closely related to what falls under the rubric
of "coercive persuasion."

Moreover, I have more recently been working on the theory of excuses
in the law, most specifically on the notions of coercion, duress,
compulsion, and undue influence. These are not merely criminal law
concepts but are used in a wide variety of legal contexts. And when
one thinks of the ways in which people try to importune, plead,
deceive, dominate, tyrannize, and otherwise control, coerce, or
influence "unduly" other people's minds and actions, then it is
evident that all this, too, has close connection with the sorts of
thinking that are going on in the area of controversy about "coercive
persuasion" in the new religions context, as well as in war prisoner
and political indoctrination contexts.

So I thought that I could bring out how the notion of "coercive
persuasion" looks to me, as I stand off in the mid-distance, viewing
it as a topic still to be explored, balancing what I may lose because
of my naivete about the detail against the fact that I come at it
fresh, as an informed outsider, so to speak. Therefore, I shall not
try to present a thesis on the topic which is very sharp and precise,
but rather to develop an angle of vision on the *legal* aspects of the
matter that I think might be usefully suggestive -- no more than that,
but I hope no less.

First of all, one might ask, what does "coercion" mean in the law?
The answer is that there are various legal tests; they differ,
depending on the legal context. The doctrines and the theories
relating to coercion are not very clear; there are not only
controversies about how to define it but also about the rationale
justifying the various legal uses of the notion.

There is, however, a common theme, a thread that runs through all
legal definitions, explanations, or accounts of what constitutes
coercion and, for that matter, undue influence as well. It is the
idea that in coercion the victim's "will" is "overthrown," or
"overcome," or overborne," or "destroyed," or "neutralized," or
"subverted" -- or something of the kind. The exact language varies
but no matter the specific legal context one finds a constant refrain
expressed in some recognizable variant of this idiom: the victim's
will was overcome. And that also seems to be the sort of thing that
is at issue when there are allegations of coercive persuasion, or
brainwashing, or thought reform. In some way, you overcome or destroy
or subvert the will of the person. In all these usages, it is implied
that the will is not just overcome but is then also dominated by the
person who is doing this. So that the victim then becomes a kind of
agent, a tool, an extension of the will, of the coercer.

Therefore, in order to bring out the significance of this idiomatic
language in law, I want now to run through some of the more specific
legal uses of the notion of coercion, and examine these in relation to
this basic idiom of the overcoming and dominating of the will. I want
to replace metaphor and idiom with a more analytical account.

Let me say at once that while the words, the idiom, the metaphors
suggest that the law is here concerned with some kind of profound,
perhaps traumatic, psychological event in the mind of the victim, I
aim to show that the psychology of the matter is not of the legal
essence at all. Even though it appears that the essence of coercion
consists in some stimulus that has produced a catastrophic, or at
least a very serious breakdown in the psyche of the victim, and that
therefore in order to legally identify instances of coercion, one
would have to delve into the psychology of the victim, this seemingly
trivially obvious conclusion is radically wrong. Or at least so I
hope to show in what follows.

Let me begin by taking up first what is perhaps the most readily
thinkable kind of coercion, the gun-at-the-head situation. The
gun-at-the-head situation no doubt typically includes some kind of
psychological turmoil or even mental trauma in the victim. But one
thing that we can immediately emphasize is that the notion of a mental
breakdown, a *destruction* of the will, is inappropriate even in this
extreme case. The point can be made in a very strong way: it is not
only that there need not be a breakdown or that in certain cases there
is not such, but that there could not be coercion if there were a
mental breakdown of some major sort. What is necessary for coercion
is that the victims keep their wits about them, that they pay
attention to what the coercer says and act promptly and rationally to
obey. Coercion breaks down if the person panics or loses control, if
the mind breaks down in its functioning in some way.

If there is no traumatic breakdown in coercion with a gun at the head,
what is it that constitutes the "overcoming of the will"? I will
quickly run through some of the logical possibilities -- even some
that are obviously not appropriate for practical purposes -- to see if
the precise meaning of the "overcome will" can be captured.

One thing that we might mean is that there is no will at all. If
something like that *were* the case, then even if the victim committed
an unlawful act, the legal implication would in general be that the
coerced person would be excusable. For if there is no will, the act
cannot be voluntary, and involuntariness is typically a defense in
law. But absence of any will at all is obviously not what is at issue
here. It does not fit the facts of coercion. An absence of will
would exist, for example, in the behavior of someone in an epileptic
fit, or in the behavior of someone tripping and falling. And that
obviously is not at all the kind of thing factually at issue in the
case of coercion. So when we say the will is overcome, we do not mean
that the person acts without will.

We might try to go right to the nub of the matter and say that by
overcome will" the law simply means "involuntary." Of course, as we
have just seen, we could not mean "involuntary" in the sense that
there is *no* will. Then, in what sense can one who acts *with* will
be acting *in*voluntarily?

One possibility that comes to mind in the legal context is that there
is some kind of mistake or ignorance. If a person was ignorant or
mistaken about some fact material to an offense that the person
committed, so that in the person's eyes the act did not constitute an
offense, then the offending act may be spoken of in law as
involuntary. It was not done intentionally or knowingly, hence not
voluntarily. This would be an excuse in many legal contexts. But,
again, it is obviously not what is at issue in the case of coercion.
In coercion we are not dealing with conduct based on mistake or
ignorance.

Another thing one might mean in law when one speaks of involuntary
behavior is that the person is in some sense irrational. Sometimes
the courts do speak of irrational behavior, for example, insane
behavior, as involuntary. Of course insanity is an excuse. But
irrationality, whether in the form of insanity or any other legally
recognized form, obviously does not fit the facts of the coercion
case. As noted earlier, coerced behavior in the gun-at-the-head
situation is not irrational behavior; quite on the contrary, it is
necessarily rational behavior.

Perhaps the behavior is involuntary in the sense that the person is
acting under some kind of "irresistible impulse." This is another
kind of involuntariness that we run across in the law. The existence
of an irresistible impulse could indeed provide a legal ground for
excuse. So if coerced behavior were such, this would provide a
rationale explaining why coercion is a legal excuse. There are
difficulties with this approach, however. First of all, the notion of
irresistible impulse is for theoretical purposes a very troublesome
notion. The problem is well expressed in the old saying: How do we
tell the difference between "He could not resist his impulse" and "He
did not resist his impulse"? This becomes in practice a very
troublesome issue in the law. Typically, when it comes up openly, as
in insanity cases, for example, it involves psychiatric testimony.
Since there is no theoretical understanding of how to apply the
distinction, what happens is that we get the expert testimony as to
the facts about the defendant -- facts as to which not infrequently
there is general agreement -- and yet the experts disagree as to
whether the impulse, desire, or mood was irresistible or not. This,
of course, is a pretty good sign that what we are dealing with here is
not a question of fact, but a question of ideological differences
among different schools of psychology and psychiatry.

Now, my point here is not simply that this causes trouble in the
courts, but that when we deal with coercion defenses, we do not see
this kind of trouble arising. Coercion defenses do not generally call
for extensive psychiatric testimony, and do not generate the typical
problems and confusions of psychiatric testimony. This, to me, is
very good evidence that coercion in law does *not* raise an
irresistible impulse type of issue, and that therefore the
involuntariness of coerced behavior is not to be understood along
these lines.

A close cousin to irresistible impulse and legally much more
respectable these days is the notion of loss of self-control. If we
stipulate that there was loss of control, then indeed we might in law
be on our way towards some kind of legal defense based on
involuntariness. Does coercion excuse because coercion is loss of
self-control? Again we have to remember that in the case of coercion
the victim does not -- and must not -- lose self-control.

I repeat, for purposes of orientation, that what I am doing here is to
look for some way of interpreting "involuntary," having moved from
overcome will" to "involuntary" and in doing so in legal terms that
would both fit the typical facts of coercion and also provide a legal
excuse. For the object here is to understand what is at issue in law
when the notion of coercion is used and to understand it in terms less
metaphorical and vague that the idiom of the "overcome will."

An approach to getting at the meaning of coercion is the saying that
when there is coercion the victim has no real choice." variants of
this are that the victim had no free choice," or had 'no fair choice."
As far as "free choice" goes, the problem is that this is a phrase
that is probably more problematic than the one we want to explain,
i.e., "coercion." Certainly the notion of "coercion" and unfree" are
not equivalent. Thus, one can be not free to make a choice and yet
not have been coerced: for example, I am not free to talk Swahili, but
for reasons that have nothing to do with coercion. Moreover, it is
arguable that one can be coerced and yet be free. One example of this
that has been offered is the case where one person threatens a second
with some terrible mortal threat, and thus induces the latter to
perform an unlawful act -- the reality being that the person who made
the threat never had any means whatsoever of carrying it out. In such
a case, the victim was in reality free to act either way, but acted
under coercion. One may be a little troubled as to whether this
latter example rests on questionable interpretation or misuse of
terms. But that is not important. What is important here is that one
finds these examples in the literature, that they do have a certain
plausibility, that as soon as one tries to link freedom up with
coercion, one funds that, rather than clarifying matters, one has
introduced a whole new set of problems and controversies. Therefore,
I find the notion of no free choice" to be unhelpful in clarifying the
notions of "involuntariness" and "coercion."

What about the idiom, "no fair choice"? Here, I think, we have
something that will be useful, especially with further refinement. If
a criminal holds a gun at your head, threatens you, and orders you to
help him, then you do not have a fair choice. A way of putting this
in legal terms is that the person who coerces you has done something
unlawful, something unfair" in a legally cognizable sense. To
characterize the choice as "unfair" suggests that there is a plausible
basis for viewing the choice, and hence the act, as in law not
voluntary; and this in turn would generally warrant being excused.
Not every lack of fair choice need arise out of coercion (it might
have been deception, for example), but every case of coercion would be
an absence of fair choice -- i.e., an *unlawful* threat as the
decisive reason for the choice.

But something odd has now happened. The crucial element -- the
unlawfulness of the coercer's threat -- is not within the victim's
mind but consists of the legal status of the coercer's act. Instead
of matters of psychology, we have to do with legal norms and the acts
of others. This changes radically the focus of the legal inquiry from
what the phrase overcome will" initially suggested.

Before pursuing this further, let us turn for still further insight to
the last of three possibilities embodying the term "choice": the idea
that where there is coercion, there is "no *real* choice." Obviously,
this is a highly idiomatic approach. It certainly would not stand if
taken literally; the coerced person does have a real choice in the
obvious sense that the person could refuse to obey. Most writers on
this topic agree that it is appropriate to describe the victim as
someone who literally does make a choice. It may well be a deliberate
choice, and indeed some people -- more brave or more foolish than
average -- do indeed choose to resist. Yet, there is plainly a
certain appropriateness, idiomatically speaking, if one says, "I
didn't really have a choice because he was holding a gun at my head."
Our question must be: Can we express plainly and more literally what
this idiom tells us?

It has been suggested, I think correctly, that what we are getting at
here is the absence of a *reasonable* choice. Generally speaking,
there is no reasonable choice if refusal means you immediately get
your head blown off. One has the power to resist, but it is typically
totally unreasonable to do so. If we allow this analysis of "no real
choice" as a first approximation, we could make the transition
plausibly from coercion" to "no real choice," and thence to 'not
voluntary." The law often must rest on the concept of doing what is
reasonable, a close cousin to doing what the "reasonable man" would
do.

But, once again, this account in the present context results in a
surprising, and even a paradoxical insight. It again turns out that
involuntariness is not a matter of some psychic process internal to
the mind of the victim; the issue turns on the reasonableness of the
choice to be made, a very different sort of issue indeed. We have to
do here with the standards or canons of reasonableness, which can be
quite objective and which in the legal context are typically taken to
be objective.

To sum up the preceding analyses: In the attempt to find out what
"overcome will" might mean, as used in the legal context of the
coercion defense, the two plausible successes in giving it any sense
have turned our attention away from the "inside" of the mind of the
victim to something "outside," to standards of law and reasonableness.
Other and more psychological uses of "involuntariness" in law turned
out to have no application in the factual situation of coercion.

The matter can now be developed more positively by looking directly at
the classical legal test used for a coercion defense, rather than by
focusing on the vague idiom of the "overcome will." The classic test
is quite specific There has to be a well-grounded or a credible threat
of imminent death or serious injury for failure to obey the coercer's
demand. And, classically, in English and American law, this will be a
defense to any criminal charge except murder. Now it is quite true,
as I remarked earlier, that a person who is in a spot like this might
very well experience great inner turmoil -- not a breakdown, but
intense emotion. But we need to ask how essential this is to the
existence in law of coercion. Suppose, for example there is an
ex-soldier who is experienced in combat, perhaps temperamentally has a
devil-may-care attitude, or in any case for one reason or another is
unfrightened and is not going through significant emotional turmoil
here even though the threat is genuine. He understands quite well
that he is threatened with imminent death if he does not obey, and
that there is no escape and so, sensibly enough, he obeys. Certainly
he has a coercion defense in law, and this being so, it is clear that
such a defense does not rest essentially on any inner breakdown or
inner trauma. There is no need to show loss of self-control or
irresistible impulse. The earlier suggested analysis does quite well
here: the legal test singles out a situation in which the victim is
unlawfully deprived of any reasonable choice except to obey. So we
have eliminated psychology entirely, and we remain with questions of
reasonableness and questions of lawfulness as these are interpreted in
legal terms.

Let us now test this approach for its generalizability by turning to
coercion in a different area of the law, the area of coerced
confessions. In the area of coerced confessions, the legal tests of
coercion, and the relevant circumstances, are very different from
those where a person has committed a criminal act and is claiming
coercion as a defense. Making a confession is not a criminal act at
all, so there is no question of coercion as a defense to a criminal
charge. Here we have a question of doing something under coercion
that is lawful but damaging to one's interests. The claim of coercion
is a claim that the confession ought not to be admitted in evidence
because it was not voluntary. The classic legal tests here are
specific and are adapted to this special type of circumstance. The
*Bram* test, which still dominates doctrine in this area, was a late
nineteenth century case. In substance, it specifies that if the
person confessed because of any kind of threat or promise or any
improper influence whatsoever, then the confession was coerced, hence
involuntary, hence inadmissible. Here we have the other extreme from
the criminal defense, for the criminal defense of coercion requires a
mortal threat. When one thinks of that paradigmatic gun-at-the-head
situation, it is plausible to think of the "will overcome." But the
*Bram* test merely requires any kind of improper influence, no matter
how slight. Here it would seem no longer plausible at all to talk
about overcoming or destroying the will or subverting the will. And
yet, the surprising thing is that the courts use this traditional
rhetoric in the confession cases, too.

In the famous *Culombe* case, for example, Justice Frankfurter spoke
of a "suction process' at work on Culombe's mind. What were the
facts? The police had his wife and children come visit Culombe in the
jail, and the police encouraged them to appeal to him to confess.
Culombe was a person of low intelligence, but he knew what he was
doing. He had consistently refused to confess, but his family talked
to him and persuaded him that he ought to confess. So he decided to
confess, and did so, giving appropriate reasons, and sticking by his
decision. I think Frankfurter's rhetoric about a suction process that
drained him of will is not descriptively apt. I would say that what
happened was that the police unlawfully created a situation in which
it became reasonable in Culombe's judgment to confess. According to
the legal test, it needed only to be the slightest bit of additional
(improper) influence on one side of the issue, so long as this
effectively made the difference in deciding to make the confession.

One can imagine someone whose mind is rather evenly balanced, is
unsure but has decided not to confess, and then, by some wrongful
device, the police presented a situation where now there is just a
little bit more reason to confess rather than not. So the person does
confess. This does not at all fit the model suggested by the language
of the will overcome, destroyed, neutralized, subverted, the language
of powerful psychological influences.
Why, then, do the courts continue to use the dramatic rhetoric of the
broken will here? I think the answer is along the following lines.
It is quite evident that the evil to be corrected is the improper use
of state power by police officers to oppress an individual who is at
least temporarily under their influence. Basic constitutional
principles of individual liberty and of restraint on state oppression
make it appropriate to impose strict constraints on police power here.
So even mild impropriety, if it could have any influence on something
so important as a confession to crime, is impermissible. Hence the
confession may not be used if the police have used such influence.
But when the specific concept of "coercion" is used as the key element
in the legal rationale, the courts must speak in the ways defined by
legal precedent. When confessions were induced by torture, the notion
of "coercion" and 'overcome will" had plausibility. Nowadays, the
improper influences" are often nothing at all like torture -- and so
the courts have had to explain away the implausibility by speaking of
"subtler" forms of "pressure" or "suction." Thus the necessary legal
rhetoric is used, but it has lost its sense. (And indeed the tendency
has recently been to invoke "exclusionary rules" explicitly based on
impropriety rather than to argue in terms of 'coercion.")

Let me now shift to another, very different area of law, in order to
complete my survey and decisively demonstrate my point. I refer to
the area of so-called economic or business law, and to the legal
notion of "economic coercion." Consider the case of a railroad
company subject to a tax which it thinks is unconstitutionally being
imposed upon it. The company does not want to pay the tax, but, on
the other hand, the tax law has an automatic trigger penalty
provision, such that if they do not pay the tax properly and on time,
they will in effect be shut down instantly. This would of course be a
major economic loss to them. So they pay under protest, and then they
sue for redress, for return of the tax money, on the ground that they
had paid under coercion. The court agrees that it was an
unconstitutionally imposed tax, and therefore the company had been
unlawfully threatened. The court also finds that the company had no
reasonable alternative, that it could never have gotten suitable
redress if the railroad had been shut down for refusal to pay up at
once. Thus, since the company was unlawfully deprived of any
reasonable alternative but to pay, the payment was coerced.

Notice once again that the crucial issues are "objective" -- legal and
economic. The threat was unconstitutional; the reasonableness of the
alternatives was calculable in terms of profit, loss, and procedures
for legal redress. Thus, we really have eliminated the psychological
element entirely from the concept of coercion here. Moreover, we are
dealing with corporations, impersonal (non-psychological) entities.
The psychology of the executives who are involved is totally
irrelevant. If the president of the company were afraid of something,
this might be of some interest, but it need not be so, and is legally
totally relevant.

Yet, if one looks at the text of this and other such cases, one finds
that the familiar psychological imagery is used. The courts speak of
the company being "compelled to yield." The term "coercion" triggers
it and by precedent calls for it.

It is true that we might have to do with individuals who are subject
to economic duress, for example, an employee who is threatened with
being fired by his employer for refusal to sign a waiver. The
employee may indeed be frightened and worried. And the courts will
always mention this sort of thing, because it does fit the traditional
rhetoric of coercion. But even if the employee were cool and
calculating about it, it still would be economic coercion if he were
unlawfully threatened in such a way that the only reasonable thing to
do was to agree. And it remains ultimately a legal question, for the
court to decide, whether the options were or were not reasonable.

By now I have taken a long trip through the windings and turnings of
law -- the reason being that only careful and specific analysis of the
law on coercion can convincingly lead one to the correct but
counterintuitive conclusion -- a conclusion that not only is likely to
be surprising to the non-lawyer but is also likely to be only
obscurely appreciated by the law professional. It is, in a nutshell,
that the legal concepts and doctrines falling under the rubric
"coercion" (or "duress" or "undue influence") do not in essence
pertain to psychological questions.

Questions of incompetence and irrationality are pertinent to law, and
do rest on psychological evidence, but the recently devised
psychological notion of coercive persuasion" can be radically
misleading if one is trying to fix the *legal* status of the phenomena
at issue. My impression is that "coercive persuasion" cases will
properly fall under the law as to mental incompetence and not the law
on coercion. These two are legally mutually exclusive -- one who is
coerced must be rational in order to be coerced, and "undue influence"
can in law only apply if the victim is mentally incompetent. So it is
important to keep these notions distinct.

On the other hand, coercive persuasion" law cases can raise the
coercion or undue influence issues -- as I see it -- if the victim is
assumed to have remained mentally incompetent, and if the emphasis of
the claim is on the allegation that the influence exerted was in
itself unlawful or wrongful in law (independent of whether it is also
"coercive.") Thus, if the persuader talks or acts wrongfully
(threatens in an unlawful way, assaults unlawfully, uses deception on
material matters, etc.), and if this conduct makes it reasonable to
one in the victim's situation to act as the victim did, then undue
influence or coercion may exist in law. The legal remedy would depend
on the circumstances. But in any case the psychology of the victim
would at most be peripherally relevant and never lies at the core of
the case.

One may think that the law should be changed so that the psychological
dimension is also centrally relevant to coercion, just as it is in the
ordinary use of that term. However, I am not trying here to argue
about reform of the law but to answer the question whether and how the
law of our land, as it is *now*, applies to "coercive persuasion."
After all, that is at least a necessary step before one can even
consider whether and how to reform the law; and in any case, it
responds to a more immediate question in regard to current litigation.
Moreover, it is not uncommon for legal terms to develop their own
technical meaning and to depart increasingly from the original
everyday use of the terms. Sometimes this is undesirable. But often
it rises over time and out of real needs and important considerations
regarding precision of legal language and justice. In the case of
"coercion" I think the latter is the case; the legal technical use is
well fitted to the legal context, and has its roots in a wide variety
of legal contexts. Hasty change to make legal terms conform to
popular usage, without study of the legal contexts that led to the
technical use, is likely to do more damage in unforeseen ways than the
benefits, if any, of the "cure."

Against this total background of my discussion and with much
trepidation and tentativeness, I would like to mention why I think the
doctrine of coercion and undue influence are not likely in the long
run to be the principal doctrines invoked when cases of alleged
"coercive persuasion" in connection with religious sects come before
the law. I think this because the legal wrongfulness of the alleged
coercer's conduct is so crucial to coercion or undue influence, and
because there is such great constitutional restraint on the courts in
regard to interfering with or making judgments about religion.
Methods of persuasion that might be plainly wrong in law when used in,
for example, an economic or domestic context, may very well be
protected by the claim that they are intrinsic to religious worship.
Beliefs and tactics that most people might consider bizarre in any
other context may be protected in the religious context. The
reluctance of the courts to interfere -- mandated at bottom by our
(Constitution -- places an exceptionally heavy burden on one who would
show the conduct to be unlawful, and this in turn makes a claim of
coercion very difficult to sustain in the religious context. It seems
to me that, on the whole, the more likely legal terrain for such
claims would be defined by the claim that the purported victim had
been rendered or become mentally incompetent in some respect or
degree. However that, too, can be a difficult question to settle
legally when one person's mental incompetence is another's religious
belief and ascetic practice.

In the end this is a factual question: how gross was the wrong done
the victim, or how gross is the incompetence? No doubt after a
certain point even the Constitutional restraints on the court
dissolve, no matter how insistently a religious rationale is offered.

The law is still in flux on these matters, and I am trying to chart
long-term probable trends on the basis of fundamental legal doctrine.
Obviously other factors will come into play, too. As I said at the
outset, I hoped to throw light from one certain angle, but I have no
firm, clean, and overall conclusions about "coercive persuasion."
Certainly -- as is obvious -- I have not attempted to take up here the
profoundly important moral, religious, political, and psychological
dimensions of this question. And a final but important disclaimer:
nothing I have said implies or is meant to imply the soundness or
unsoundness of the claims pro or con as to the existence of
"persuasive coercion" in particular sects. I have been concerned with
determining what law is generally relevant to these claims, not with
what the legal decision would be or should be in actual cases.